January 1, 2012

Public Domain Day 2012: Five things we can do in the US

It’s New Year’s Day again, and in much of the world, this means another year’s worth of works enter the public domain. That’s a cause for celebration, as Europe and many other countries that have “life+70 years” copyright terms welcome works by James Joyce, Virginia Woolf, Jelly Roll Morton, and Elizabeth von Arnim into the public domain. The Communia Project’s Public Domain Day website focuses on works by these and many other authors that are entering (in many cases, re-entering) the public domain in “life+70 years” countries. Meanwhie, folks in Canada, New Zealand, and other countries that have held the line at the “life+50 years” terms of the Berne Convention can now freely enjoy the works of people like James Thurber, Ernest Hemingway, and H.D.

There’s not so much excitement about Public Domain Day in the US, where no published works are scheduled to enter the public domain for another 7 years, due to a 20-year copyright extension enacted in 1998. But Americans don’t have to simply sigh and contemplate what might have been if our copyright terms hadn’t been extended. The new year still provides a number of important opportunities for Americans to improve access to the public domain.

1. Find and free newly public domain unpublished works

Some works are going into the public domain in the US today: works never published prior to 2003 (or copyrighted under US law prior to 1978) by authors who died in 1941– the same authors whose published works go into the public domain in Europe today.

But who would care about such obscure works? one might ask. Well, if you’re at all interested in understanding the dense, allusion-laden fiction of Joyce, or the psychology of Woolf, or the jurisprudential thinking of Louis Brandeis, or the inner lives of any of the rest of the “class of 1941″, having the right to freely access, publish, and build on their unpublished works can be crucial.

Up until now, for instance, scholars studying James Joyce have often been frustrated by sharp restrictions and legal threats made by the administrator of Joyce’s literary estate. In 2008, Rebecca Ganz characterized the administrator thus: “[His] primary purpose is to quell any scholarship that he finds distasteful or an invasion of his family’s privacy. He has a history of harassing authors and artists until they buckle under the strain of trying to obtain legal rights to quote from the late author’s writings.” Scholars wishing to invoke Joyce’s unpublished works in their work have either had to undertake multi-year legal battles, or cut back on the lines of inquiry they might otherwise pursue.

Many of the millions of digitized books on the Internet are hosted in the US, in large-scale repositories like Google Books, HathiTrust, and the Internet Archive. Many of these services give limited access to non-US readers or materials. Google and HathiTrust, for instance, limit non-US access by default to books published as long as 140 years ago, to avoid falling afoul of “life+70 years” copyright terms abroad. JSTOR likewise limits access to non-US journal volumes published in 1870 or later.

With another year’s worth of copyrights expiring in “life+70 years” countries, it should be safe for these US-based services to also open up worldwide access to another year’s worth of works, further freeing up the public domain. HathiTrust is also willing to manually review copyrights on specific books to open up access. If you come across any books in HathiTrust solely by authors who died in 1941 (or before) that are currently labeled only as “public domain in the United States”, you can request that they review it for opening up access worldwide. Just use the “Feedback” button at the bottom of the book’s HathiTrust page, or the suggestion form on my Online Books Page; and make sure you ask specifically for non-US access.

After libraries and archives expressed concerns about the fate of obscure works under longer copyright terms, Congress included a special exemption in their 1998 copyright tem extension. The exemption, codified as section 108(h) of the copyright law, states that “during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research”, under certain conditions. In particular, if the institution finds, after a reasonable investigation, that such a work is not “subject to normal commercial exploitation” (such as by being in print) and cannot “be obtained at a reasonable price”, and no rightsholder has filed a claim otherwise, the work qualifies for this special exemption. As of this year’s Public Domain Day, qualifying publications from 1936 join what is now 14 years of works in this category.

So far, I have found very little digitized content online where this exemption is explicitly invoked. (There are advantages to explicitly doing so, both because it helps clarify the right to use the material, and helps prevent inadvertent unauthorized propagation of the works, such as the commercial reprints of digitized books that are now common on many large bookselling sites.) Yet many of the works in HathiTrust’s (currently suspended) orphan works initiative, and in the Internet Archive’s lending library, and more besides, could well qualify for this treatment– and unlike orphan works, where legislation has yet to be passed, the exemption for these materials is already explicitly authorized by statute.

Providing online access for these works is not without controversy. A 2002 article by lawyer Mary Minow details some of the potential possibilities and risks. While she concludes that libraries can put such works on the Web, the recent Author’s Guild complaint in its lawsuit against HathiTrust includes some push-back against this idea. But as the public domain in the US recedes further into history, and digital library projects increasingly look for ways to make our cultural heritage available online, American libraries would do well to proactively establish and exercise these rights for older works now languishing in obscurity.

It’s still quite possible that SOPA and PIPA will pass, though. Public Domain Day provides an opportunity for Americans to reflect on some of the good reasons for limiting the power and scope of copyright enforcement, and to redouble efforts to keep those limits reasonable. Moreover, a coalition that can stop SOPA and PIPA can also work to prevent further extensions of copyright terms. This can ensure that Americans will have more to celebrate in Public Domain Days to come– especially starting in 2019, when the remaining 1923 copyrights should finally expire in the US.

5. Give copyrights of your own to the public domain

Of course, those wishing to maximize public access and use of their works don’t have to wait for their copyrights to expire on their own. They can dedicate them to the public domain any time they want. Public Domain Day is a particularly auspicious time to make such gifts, no matter what country you’re in. And with tools like the CC0 declaration, it’s easier than ever to do so.

A few years ago, I started an annual personal tradition of reviewing copyrights to works I’d created more than 14 years ago (the original initial term of copyright enacted by the founders of the US, and also approximately the ideal copyright term given in a recent economic analysis) and dedicating works to the public domain that I didn’t feel needed further copyright. Accordingly, today I dedicate all the work of my creation that I published in 1997, and for which I still control rights, to the public domain. For me, this consists primarily of websites like The Online Books Page as of that year, and other online writings. But others have dedicated more high-profile material to the public domain after the same term. And I’d be very happy to hear from others who are making similar dedications today (whether or not it’s after 14 years).

So, happy Public Domain Day to everyone in the US and elsewhere! We all have things to celebrate, and things we can do, in the name of the public domain.